Balkin on Hamdan:
Jack Balkin has a very nice post Hamdan as a Democracy-Forcing Decision, the essence of which is:
What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way.
(Read the whole thing.) It has long seemed clear to me and many others who are otherwise sympathetic to its policies that the Bush administration made two colossal errors in prosecuting the general war on terror.

First: Not seeking quick explicit congressional authorization for such policies as incarceration, military tribunals, etc. The Hamdan case was just one result of this failure. Now, such involvement is much more difficult to accomplish; then it would have been relatively easy. Just not as easy as going it alone, which has proved to be the harder course in the long run.

Second: Not involving the American public directly in supporting the war. Tax increases or a military draft were not needed for this. But bond drives, resource collection, and other assistance-to-the-military programs — even better, some form of volunteer genuine militia service — in the wake of 9/11 would have given the public some ownership of the resulting policies. Many called for these sorts of initiatives at the time. They were waiting to be asked to pitch in and help. Instead the administration adopted a Vietnam-type strategy of "We'll handle things; you all go about your business." Which leads to bad reactions when "things" do not go as smoothly as expected.

The administration essentially opted for a one-branch war, and the country is now paying the price for that decision. While the failure to involve Congress is merely hard to rectify at this point, the failure adequately to involve the public may now be impossible to remedy.

Neither of these observations is original to me. Both points were made by others when the GWOT began, which is why it is not hindsight to point them out on a day that a very large chicken has come home to roost.

There are important lessons to be learned here for future wars, both conventional and asymmetric. I am no expert on military strategy, etc., and for this reason do not blog about it. But this falls more into the domain of political or constitutional theory, and tells us something important about the value of the separation of powers. Jack's basic point is that the Court is giving the administration a mulligan. But the do-over will be much more difficult than the initial shot would have been. It did not have to be this way.

(Civil comments only please.)

Update: Some of the comments have concerned the militia suggestion alluded to above. I raised this possibility on 9/18/2001 (so please forgive its emotional tone) in an essay Saved by the Militia: Arming an army against terrorism. Of course, the merits of this particular form of citizen involvement are somewhat tangential to my principal point about the cost of insufficiently involving the public in a major war like the GWOT. And my original post did not concern the correctness of the Court's decision in Hamdan--especially its decision to reach the merits of the dispute. I was merely commenting on Balkin's insights about its scope and affect.

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